Legislature(2011 - 2012)CAPITOL 120

03/11/2011 01:00 PM House JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 14 EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL TELECONFERENCED
Moved CSHB 14(JUD) Out of Committee
+= HB 127 CRIMES INVOLVING MINORS/STALKING/INFO TELECONFERENCED
Moved CSHB 127(JUD) Out of Committee
+ Bills Previously Heard/Scheduled TELECONFERENCED
+= HB 76 STALKING/SEXUAL ASSAULT PROTECTIVE ORDERS TELECONFERENCED
Moved Out of Committee
         HB 14 - EXEC ETHICS: LEGAL FEES/FAMILY TRAVEL                                                                      
                                                                                                                                
1:06:27 PM                                                                                                                    
                                                                                                                                
CHAIR GATTO announced  that the first order of  business would be                                                               
HOUSE  BILL NO.  14, "An  Act authorizing  state agencies  to pay                                                               
private legal  fees and costs  incurred by persons  exonerated of                                                               
alleged Alaska  Executive Branch Ethics Act  violations; allowing                                                               
certain  public officers  and former  public  officers to  accept                                                               
state payments to offset private  legal fees and costs related to                                                               
defending  against   an  Alaska   Executive  Branch   Ethics  Act                                                               
complaint; and  creating certain  exceptions to  Alaska Executive                                                               
Branch Ethics  Act limitations on  the use of state  resources to                                                               
provide or pay for transportation  of spouses and children of the                                                               
governor and the lieutenant governor."                                                                                          
                                                                                                                                
1:07:11 PM                                                                                                                    
                                                                                                                                
GRETCHEN  STAFT,  Staff,  Representative  Max  Gruenberg,  Alaska                                                               
State  Legislature,  on  behalf of  the  sponsor,  Representative                                                               
Gruenberg, explained  that HB 14  would set forth in  statute the                                                               
substance  of the  administration's recently-enacted  regulations                                                               
establishing standards  for the  reimbursement of legal  fees and                                                               
costs  for  exonerated  executive  branch  employees  accused  of                                                               
ethical  violations,  and  for  the  payment  of  certain  travel                                                               
expenses  for  the  families  -  spouse and  children  -  of  the                                                               
governor  and lieutenant  governor.   Placing these  standards in                                                               
statute rather  than just in  regulations would  address concerns                                                               
that  the  regulations were  enacted  outside  the scope  of  the                                                               
administration's authority,  and would  remove any  appearance of                                                               
impropriety - that the executive  branch created regulations that                                                               
would specifically  benefit the  executive branch.   However, the                                                               
regulations  and   HB  14  differ   in  two  ways.     Under  the                                                               
regulations, only the travel expenses  of minor children could be                                                               
reimbursed, whereas  under the bill,  the travel expenses  of any                                                               
dependent  child   -  including,  for  example,   a  mentally  or                                                               
physically disabled  child - could  be reimbursed even  if he/she                                                               
were  not still  a minor;  and under  the regulations,  the legal                                                               
fees and  costs could be  reimbursed before the  executive branch                                                               
employee was  exonerated, whereas  under the  bill, reimbursement                                                               
couldn't occur  until after he/she  was exonerated.   She relayed                                                               
that the sponsor considers this  latter difference to be a better                                                               
policy choice and safer for the State.                                                                                          
                                                                                                                                
CHAIR GATTO  observed that  they wouldn't want  to have  paid the                                                               
legal fees and costs of someone who was never exonerated.                                                                       
                                                                                                                                
MS. STAFT concurred.                                                                                                            
                                                                                                                                
1:11:02 PM                                                                                                                    
                                                                                                                                
MS. STAFT  then went on  to explain that specifically,  Section 1                                                               
of HB 14 -  in addition to making a minor  stylistic change in AS                                                               
39.52.120(b)(6) to the term, "for  partisan political purposes" -                                                               
would delete  the definition  of that  term from  that paragraph.                                                               
That  definition [along  with stylistic  changes]  would then  be                                                               
included  in Section  3's proposed  AS 39.52.120(h).   Section  2                                                               
would  make  a  similar  stylistic  change  to  AS  39.52.120(f).                                                               
Section  3  would  add  two   new  paragraphs  to  AS  39.52.120:                                                               
proposed  paragraph  (g),  and, again,  proposed  paragraph  (h);                                                               
specifically, proposed  paragraph (g) would authorize  the use of                                                               
state  resources  to pay  the  travel  costs  of the  spouse  and                                                               
children of the governor or  lieutenant governor to an event that                                                               
meets certain criteria.   Under those criteria,  the event cannot                                                               
have a partisan political purpose, and  must be of benefit to the                                                               
state, as enumerated in proposed AS 39.52.120(g)(2)(A)-(D).                                                                     
                                                                                                                                
MS. STAFT,  in response  to a  question, paraphrased  Section 3's                                                               
proposed definition  of the  term, "partisan  political purpose",                                                               
which read:                                                                                                                     
                                                                                                                                
     (h) In this section, "partisan political purpose"                                                                          
          (1) means a purpose intended to differentially                                                                        
     benefit or harm a                                                                                                          
               (A) candidate or potential candidate for                                                                         
     elective office; or                                                                                                        
               (B) political party or group;                                                                                    
          (2) does not include a purpose intended to                                                                            
     benefit  the  public  interest  at  large  through  the                                                                    
     normal performance of official duties.                                                                                     
                                                                                                                                
MS.  STAFT offered  her understanding  that  this definition  has                                                               
been interpreted clearly in the past.                                                                                           
                                                                                                                                
1:13:48 PM                                                                                                                    
                                                                                                                                
MS.  STAFT,  in  response  to  comments  and  further  questions,                                                               
paraphrased  a   portion  of  Section  3's   proposed  subsection                                                               
(g)(2)(A)-(D) to  illustrate that under certain  circumstances, a                                                               
physically  or mentally  disabled  family  member's travel  costs                                                               
could be paid by the State; that proposed paragraph (2) reads:                                                                  
                                                                                                                                
     (2) the person's attendance is  a benefit to the state;                                                                    
     under  this  paragraph,  a  benefit  to  the  state  is                                                                    
     presumed when                                                                                                              
          (A) the person's attendance at the event is                                                                           
     required for official action of the state;                                                                                 
          (B) the event is state-sponsored and the person's                                                                     
     attendance has been customary at similar events;                                                                           
          (C) the person is attending as an officially                                                                          
     designated representative of the state; or                                                                                 
          (D) the person is invited by the sponsor of the                                                                       
     event before  the transportation  occurs, the  event is                                                                    
     related to issues important to  the state, the governor                                                                    
     or lieutenant governor attends, and                                                                                        
          (i) the event is a family or youth event at                                                                           
    which   the   person's   attendance   is   particularly                                                                     
     appropriate; or                                                                                                            
              (ii) the invitation and the person's                                                                              
     attendance have been customary for similar events.                                                                         
                                                                                                                                
MS. STAFT added  that the sponsor thought it was  fair to pay the                                                               
travel costs of  a governor or lieutenant  governor's mentally or                                                               
physically disabled  dependent child  regardless of  his/her age,                                                               
and predicted that such probably wouldn't occur very often.                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG, in response  to a comment, and speaking                                                               
as  the sponsor  of HB  14, pointed  out that  the aforementioned                                                               
regulations already  include a provision authorizing  the payment                                                               
of  a  governor or  lieutenant  governor's  minor child's  travel                                                               
costs to certain events, adding that  he felt such should also be                                                               
authorized  for   a  disabled  dependent  child,   otherwise  the                                                               
governor  or  lieutenant  governor,  as a  parent  attempting  to                                                               
conduct  state  business,  could  be  put  in  a  very  difficult                                                               
position.  He,  too, predicted that this  probably wouldn't occur                                                               
very   often,  particularly   if  the   governor  or   lieutenant                                                               
governor's child is severely physically disabled.                                                                               
                                                                                                                                
1:18:15 PM                                                                                                                    
                                                                                                                                
MS.  STAFT went  on  to  explain that  Section  4  - proposed  AS                                                               
39.52.470 - addresses the payment of  legal fees and costs for an                                                               
exonerated   executive  branch   employees  accused   of  ethical                                                               
violations.   Again,  the difference  between the  aforementioned                                                               
regulations  and the  bill  is that  under  the regulations,  the                                                               
legal fees  and costs could  be paid before the  executive branch                                                               
employee is exonerated, whereas  under the bill, payment couldn't                                                               
occur until  after he/she is  exonerated, thereby  precluding the                                                               
need for the  State to recoup its payments in  the event that the                                                               
executive branch  employee is never  exonerated.  In  response to                                                               
comments  and questions,  she pointed  out that  the language  of                                                               
proposed AS  39.52.470(e)(2) stipulates that only  the reasonable                                                               
and  necessarily-incurred  fees  and   costs  for  private  legal                                                               
representation could be reimbursed by  the State.  She noted that                                                               
Rule 82 of the Alaska Rules  of Civil Procedure outlines a lot of                                                               
the  various  factors the  court  would  consider in  determining                                                               
whether  fees and  costs were  indeed reasonable  and necessarily                                                               
incurred.  Furthermore, proposed  AS 39.52.470(a) stipulates that                                                               
if  the   executive  branch  employee  is   accused  of  multiple                                                               
violations,  he/she could  only be  reimbursed for  the fees  and                                                               
costs associated with the charges he/she is exonerated of.                                                                      
                                                                                                                                
MS. STAFT, in response to  questions, reiterated that the sponsor                                                               
feels it would be safer for  the State, in terms of it protecting                                                               
its resources, to wait until  after the executive branch employee                                                               
actually is exonerated and then  reimburse him/her for associated                                                               
legal fees and costs, rather than  to pay his/her legal costs and                                                               
fees  in  an ongoing  case  and  then  seek recoupment  of  those                                                               
payments  when he/she  isn't  exonerated  of ethical  violations.                                                               
Waiting until a person is exonerated  is also in keeping with the                                                               
laws  pertaining to  paying [legal]  fees and  costs incurred  by                                                               
judicial branch employees.  She  noted that Legislative Legal and                                                               
Research Services  was asked to  research whether there  were any                                                               
states that  allowed for  the payment of  ongoing legal  fees and                                                               
costs in advance  of exoneration, but was unable find  any in the                                                               
time allotted.                                                                                                                  
                                                                                                                                
REPRESENTATIVE  GRUENBERG -  noting that  Section 4  of the  bill                                                               
applies to all executive branch  employees, not just the governor                                                               
and lieutenant  governor - explained  that under Rules 79  and 82                                                               
of the Alaska Rules of Civil  Procedure, a case has to be finally                                                               
disposed  of  before   costs  and  fees  are   apportioned.    He                                                               
characterized  the  regulations' alternative  approach  regarding                                                               
the  payment of  legal  fees  and costs  as  constituting a  very                                                               
dangerous practice.   It would be very  difficult and problematic                                                               
for  the  State  to  seek  reimbursement from  a  person  who  is                                                               
ultimately  found  to be  guilty  of  embezzlement, for  example,                                                               
particularly if he/she goes on the run after being found guilty.                                                                
                                                                                                                                
MS. STAFT,  in response to  a comment, clarified that  because it                                                               
would be  the State  bringing the  charges against  the executive                                                               
branch employee, the State couldn't  pick who would represent the                                                               
employee, because doing  so would be a conflict of  interest.  It                                                               
would  be  up  to  the  employee  to  choose  his/her  own  legal                                                               
representation.                                                                                                                 
                                                                                                                                
1:32:50 PM                                                                                                                    
                                                                                                                                
JUDY BOCKMAN, Assistant Attorney  General, State Ethics Attorney,                                                               
Opinions,   Appeals,  &   Ethics,  Civil   Division  (Anchorage),                                                               
Department of Law (DOL), in  response to a question and comments,                                                               
clarified that  the Alaska Executive  Branch Ethics  Act provides                                                               
confidentiality for  a complaint  and all materials  collected in                                                               
the investigation, and so once the  complaint is filed, it is the                                                               
department's policy, as  mandated by statute, to  keep the matter                                                               
completely confidential  - not commenting  even on  its existence                                                               
or  its   status.    Although  sometimes   complainants  publicly                                                               
announce that  they have filed  a complaint, there is  no penalty                                                               
for doing  so under the  Alaska Executive Branch Ethics  Act, and                                                               
to  assess a  penalty against  complainants who  speak out  would                                                               
raise constitutional problems because  the First Amendment allows                                                               
citizens  to   express  concerns   and  complaints   about  their                                                               
government.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG,  in   response  to  earlier  comments,                                                               
assured  the  committee  that  proposed  AS  39.52.470(e)(2)  was                                                               
written very carefully, with language  very similar to that found                                                               
in the Alaska Rules of Civil  Procedure, so as to ensure that the                                                               
legal fees and costs that could  be reimbursed by the state would                                                               
be controlled.                                                                                                                  
                                                                                                                                
CHAIR  GATTO,  after ascertaining  that  no  one else  wished  to                                                               
testify, closed public testimony on HB 14.                                                                                      
                                                                                                                                
MS.  STAFT, in  response to  questions, offered  her belief  that                                                               
moving the  definition of the term,  "partisan political purpose"                                                               
from  AS 39.52.120(b)(6)  to AS  39.52.120(h) wouldn't  result in                                                               
any substantive  change to AS  39.52; and relayed that  she isn't                                                               
aware  of  what  the  rationale   was  for  providing  a  maximum                                                               
threshold of 10 percent in existing AS 39.52.120(f).                                                                            
                                                                                                                                
1:39:10 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE  KELLER  [made  a   motion]  to  adopt  Conceptual                                                               
Amendment 1, to  insert on page 3, line 26,  the word, "oriented"                                                               
after the  word, "youth".   There being no  objection, Conceptual                                                               
Amendment 1 was adopted.                                                                                                        
                                                                                                                                
1:40:23 PM                                                                                                                    
                                                                                                                                
REPRESENTATIVE THOMPSON  moved to report  HB 14, as  amended, out                                                               
of   committee   with    individual   recommendations   and   the                                                               
accompanying   fiscal  notes.      There   being  no   objection,                                                               
CSHB 14(JUD)  was  reported  from the  House  Judiciary  Standing                                                               
Committee.                                                                                                                      

Document Name Date/Time Subjects
HB14 Hearing Request 02-09-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB14 Witness List 02-09-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB14 Sponsor Statement 02-09-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB14 Sectional Analysis 02-09-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB14 Version A 01-18-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB14 Fiscal Note-LAW-CIV 01-21-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB14 Supporting Documents-Opinion Legal Services 01-31-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB14 Supporting Documents-Opinion Legal Services 02-12-10.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB14 Supporting Documents-Relevant Regulations.pdf HJUD 3/11/2011 1:00:00 PM
HB 14
HB127 Proposed Amendment M.3 and Memo 03-10-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 127
HB127 Proposed Amendment M.4 02-24-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 127
HB127 Proposed Amendment M.5 02-24-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 127
HB127 Opposing Documents-Memo Media Coalition 03-03-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 127
HB127 Supporting Documents-Letter DJJ 03-10-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 127
HB76 Supporting Documents-Memo Legal Services 03-10-11.pdf HJUD 3/11/2011 1:00:00 PM
HB 76